The
parties were married in 1955. Respondent elected to receive his pension in the
form of monthly payments when he retired from the armed forces in 1976. After
the parties separated in 1980, respondent petitioned for divorce and appellant
counter‑petitioned, seeking a division of pension benefits as matrimonial
assets, inter alia. Section 12 of the Nova Scotia
Matrimonial Property Act provides for the equal division of matrimonial assets
upon the dissolution of a marriage and s. 13 allows the court to make an
unequal division where a division in equal shares would be "unfair or
unconscionable". The trial judge included respondent's pension in
calculating the equal division of property between the spouses. He
included the value of the pension payments respondent received between the date
of separation and the time of trial in his matrimonial assets, and ordered that
he pay appellant one half of the pension payments received in future. The
Court of Appeal found that the periodic pension payments constituted income,
not a matrimonial asset. It varied the calculation of the matrimonial assets
by deleting from respondent's assets the pension payments he had already
received and deleted from the trial judge's order the monthly pension payments
to be paid to appellant in the future. The issue before the Court is the
appropriate means by which appellant may participate in respondent's pension
benefits.

Held: The
appeal should be allowed.

Pensions
should be included as matrimonial assets subject to equal division. This
interpretation of the legislation is clearly more consonant with the spirit and
intent of the Act than s. 13, which will not be an effective option where
the only substantial asset is the pension. Maintenance is not an acceptable
alternative to a share of a capital asset since maintenance is contingent both
on the continuing need of the appellant and on the ability to pay of the
respondent. Discretionary support payments are an inadequate and unacceptable
substitute for an entitlement to share in the assets accumulated during the
marriage as a result of the combined efforts of the spouses.

Pensions,
because they are not business assets and therefore not included in the list of
exceptions in s. 4(1), are matrimonial assets to be divided equally. The
weight of appellate authority in several provinces supports this classification
of pensions. Pensions are not "income" in the sense of payments
for present work, nor are they income to be earned in the future. Rather
pensions are benefits earned throughout the period of the pension. It would be
unjust to find that, because respondent elected to take monthly payments rather
than a lump sum, the pension ceases to be a matrimonial asset.

The
difficulty in valuing pensions is not a bar to concluding that they are
property for the purposes of equal division. The prohibition against
alienation found in s. 8(6) of theCanadian Forces
Superannuation Act does not prevent respondent's pension benefits from
being characterized as matrimonial assets. There is no conflict between
s. 8(6) and the Matrimonial Property Act.

There
is no reason to interfere with the trial judge's findings in this case. His
order reflects the spirit and intent of the legislation, and while it does not
result in a "clean break" between the parties, it enables both of
them to enjoy the benefits of the pension as and when they fall due.

WILSON J. --
The main issue in this appeal is whether a periodic pension benefit paid
pursuant to the Canadian Forces Superannuation Act, R.S.C.
1970, c. C-9, as amended, is a "matrimonial asset" within the meaning
of the Nova Scotia Matrimonial Property Act, S.N.S. 1980, c.
9, as amended, and therefore subject to equal division thereunder.

1. The
Facts

The
parties, Grace Lorraine Clarke (appellant) and Franklyn Vernon Clarke
(respondent), were married on August 6, 1955. At the time of the marriage Mrs.
Clarke was 21 years of age and Mr. Clarke was 26. They lived and cohabited in
various places in Canada, mainly on or near Canadian Armed Forces Bases, until
the end of July, 1980. At the commencement of the marriage both parties were
employed by the Royal Canadian Air Force. During the course of the marriage
the parties had five children. From the date of marriage until the youngest
child reached the age of five, which was in 1968, Mrs. Clarke raised the
children and cared for the home. In 1968 she began working outside the home as
a cleaner and at various other jobs as well as maintaining the home and caring
for the children. All the money she earned was used for household and living
expenses. Mr. Clarke remained a member of the Armed Forces until his
retirement on February 2, 1976. He was then entitled to an annuity pursuant to
theCanadian Forces Superannuation Act and had the option
of receiving either a cash settlement or monthly payments. Mr. Clarke elected
to receive monthly payments which amounted to $564.21 per month. The election
is final. He cannot now re-elect to take a cash settlement.

After
the parties separated Mrs. Clarke moved to Thunder Bay, Ontario, and lived in
an apartment owned by her mother and another relative. Mr. Clarke moved out of
the matrimonial home as well and subsequently entered into a common law
relationship. He resided in Shelburne County, Nova Scotia. Only the children
remained in the matrimonial home in Berwick, Nova Scotia. Mr. Clarke continued
to pay the mortgage and the taxes on the matrimonial home and Mrs. Clarke sent
money to the children to help with expenses.

Neither
party has a significant income. At the time of separation Mrs. Clarke was
doing seasonal work but at the time of the trial she was unemployed and
receiving $860.00 per month in unemployment insurance. At the time of the
trial Mr. Clarke was employed at a lumber company earning $7.50 per hour.
During the year of the trial he made approximately $8,200.00. He was also
receiving the monthly pension benefit.

The
jointly owned matrimonial home had an assessed value of $56,500.00, subject to
a mortgage with an outstanding balance as of May 31, 1985 of $18,623.26, or a
net value to each party of $18,938.37. The home was sold in July of 1986.
Excluding the pension benefit the remaining matrimonial assets amounted to just
over $40,000.00. Thus, the only assets of substance were the matrimonial home
and the pension benefit.

Mr.
Clarke petitioned for divorce in the Supreme Court of Nova Scotia, Trial
Division. Mrs. Clarke counter‑petitioned and sought as corollary relief
an order for maintenance, a division of property and a division of pension
benefits as matrimonial assets. In granting a decree nisi of divorce
MacDonnell J. included Mr. Clarke's pension in calculating the equal division
of property between the spouses. He included in Mr. Clarke's matrimonial
assets $27,815.56, being the value of 58 months of pension payments received by
him between the date of separation and the time of trial. He ordered that one
half of the monthly pension payments received by Mr. Clarke in the future
should be paid to Mrs. Clarke. After adjusting for income tax the amount to be
received by Mrs. Clarke amounted to $239.79 per month.

Mr.
Clarke appealed and the Appeal Division of the Supreme Court allowed the appeal
and varied the order of the trial judge by deleting from it the monthly pension
payments to be paid to Mrs. Clarke. The Appeal Division further ordered that
the calculation of the matrimonial assets made by the trial judge be varied by
deleting from Mr. Clarke's assets the pension payments he had already received,
or $27,815.56. Mrs. Clarke was granted leave to appeal to this Court.

2. The
Issues

This
appeal is limited to the treatment in the courts below of the pension benefits
being received by Mr. Clarke under theCanadian Forces
Superannuation Act. The main issue is whether the pension is a
"matrimonial asset" within the meaning of the Nova Scotia
Matrimonial Property Act and therefore subject to equal division thereunder.

Section
12 of the Act provides for the equal division of matrimonial assets upon the
dissolution of a marriage. It reads:

12 (1) Where

(a)a petition for divorce is filed;

(b)an application is filed for a declaration of nullity;

(c) the spouses have been living separate and apart and
there is no reasonable prospect of the resumption of cohabitation; or

(d)one of the spouses has died,

either
spouse is entitled to apply to the court to have the matrimonial assets divided
in equal shares, notwithstanding the ownership of these assets, and the court
may order such a division.

Matrimonial
assets is defined in s. 4(1) as follows:

4 (1) In this Act, "matrimonial
assets" means the matrimonial home or homes and all other real and
personal property acquired by either or both spouses before or during their
marriage, with the exception of

(a) gifts, inheritances, trusts or settlements received
by one spouse from a person other than the other spouse except to the extent to
which they are used for the benefit of both spouses or their children;

(b) an award or settlement of damages in court in favour
of one spouse;

(c) money paid or payable to one spouse under an
insurance policy;

(d) reasonable personal effects of one spouse;

(e) business assets;

(f) property exempted under a marriage contract or
separation agreement;

Should
this Court find that the pension is not a matrimonial asset, the appellant
seeks in the alternative an unequal division of the matrimonial assets under s.
13 of the Act on the basis that equal sharing would be "unfair or
unconscionable" having regard to the respondent's exclusive entitlement to
the pension.

Section
13 of the Act provides:

13 Upon an application pursuant to
Section 12, the court may make a division of matrimonial assets that is not
equal, or may make a division of property that is not a matrimonial asset,
where the court is satisfied that the division of matrimonial assets in equal
shares would be unfair or unconscionable taking into account the following
factors:

(a) the unreasonable impoverishment by either spouse of
the matrimonial assets;

(b) the amount of the debts and liabilities of each
spouse and the circumstances in which they were incurred;

(c) a marriage contract or separation agreement between
the spouses;

(d) the length of time that the spouses have cohabited
with each other during their marriage;

(e) the date and manner of acquisition of the assets;

(f) the effect of the assumption by one spouse of any
housekeeping, child care or other domestic responsibilities for the family on
the ability of the other spouse to acquire, manage, maintain, operate or
improve a business asset;

(g) the contribution by one spouse to the education or
career potential of the other spouse;

(h) the needs of a child who has not attained the age of
majority;

(i) the contribution made by each spouse to the marriage
and to the welfare of the family, including any contribution made as a
homemaker or parent;

(j) whether the value of the assets substantially
appreciated during the marriage;

(k) the proceeds of an insurance policy, or an award of
damages in tort, intended to represent compensation for physical injuries or
the cost of future maintenance of the injured spouse;

(l) the value to either spouse of any pension or other
benefit which, by reason of the termination of the marriage relationship, that
party will lose the chance of acquiring;

(m) all
taxation consequences of the division of matrimonial assets.

The
appellant raises a third issue. She objects to the Court of Appeal's
suggestion that she is not being deprived of any interest in the pension by its
being excluded from matrimonial assets since it may still be used to form the
basis of a maintenance order. She submits that a contingent right to obtain
support is not an acceptable substitute for the absolute ownership of property
arising from a division of matrimonial assets.

3. The
Courts Below

Supreme
Court of Nova Scotia, Trial Division

In
dealing with the pension payments MacDonnell L.J.S.C. first stated that the
leading case on whether entitlements under pension and retirement plans are
matrimonial assets subject to distribution under the Matrimonial Property
Act is Lawrence v. Lawrence (1981), 25 R.F.L.
(2d) 130 (N.S.S.C., App. Div.), leave to appeal to this Court refused, 49
N.S.R. (2d) 209 (S.C., App. Div.). Hart J.A. held in that case that the
pension benefit at issue was a matrimonial asset as opposed to a business
asset. MacDonnell L.J.S.C. followed this authority. He rejected the
submission that because the pension had been capitalized and was being received
as income it could not be viewed as an asset. In his opinion it would be
highly inequitable and unjust if, just because Mr. Clarke elected to take the
pension benefit by way of monthly income rather than as a lump sum benefit, it
should cease to be a matrimonial asset so that Mrs. Clarke could not benefit
therefrom. MacDonnell L.J.S.C. further stated that:

During
the 25 year duration of this marriage the evidence clearly indicates that the
wife contributed to the up-keep of the home, the accumulation of matrimonial
assets, and matrimonial benefits in all respects and at least an equal portion,
if not more than the husband. The ability of the husband to accumulate the
pension benefits which he is now enjoying on a monthly basis was very
definitely made possible in a great part by the contribution of the wife. It
would be highly unjust to deprive her of her proper benefit accruing from the
said pension payments on the specious argument that having vested the said
benefits do not have a value. The pension benefits most certainly have a
value, namely, $564.21 monthly, less whatever income tax the same attracts.

MacDonnell
L.J.S.C. therefore ordered that the pension benefits received by Mr. Clarke
between the date of separation and the date of trial be added to his
matrimonial assets and that one half of the future pension payments he received
be paid to Mrs. Clarke. He found that both the past and future payments should
be discounted by 15 percent for income tax purposes.

Turning
to the issue of maintenance, MacDonnell L.J.S.C. noted that Mrs. Clarke was
collecting unemployment insurance at the time of trial and found that no need
had been proved. He added that, if Mrs. Clarke did not obtain employment in
the future, it may be that her circumstances will have changed to such a degree
that an application for maintenance could be successfully pursued.

Nova Scotia
Court of Appeal (1986), 1 R.F.L. (3d) 29

Pace
J.A., for the court (Hart, Jones and Pace JJ.A.), noted that the monthly
pension payments received by Mr. Clarke were being received long before the
separation and stated that the evidence revealed that the payments were not
treated as matrimonial assets but rather as income in his hands. He
distinguished the decision in Lawrence, supra, on the
basis that Hart J.A. was referring to a return of pension contributions made by
a husband who had changed his vocation from one university to another and whose
pension was not transferrable and had to be withdrawn as a cash sum. In this
case the pension payments were made on a periodic basis and constituted income,
not a matrimonial asset. He observed as well that, as no evidence was adduced
as to the capitalized value of the pension, it appeared that the trial judge
had treated the pension benefit as income even although he had divided it as a
matrimonial asset.

Pace
J.A. recognized that some pensions might be matrimonial assets but expressed
concern about classifying pensions as matrimonial assets in circumstances where
the legislature had declared them to be inalienable and free from seizure or
execution as was the case here. He stated at pp. 39-40:

Accepting
as I must the judgment of this court in Lawrence, supra,
that some pensions under certain circumstances are to be classified as
matrimonial assets, the problem then arises as to the type of pension to be so
classified and the valuation of the benefit. I must confess that I have grave
difficulty classifying any type of pension as a matrimonial asset where there
is an express legislative prohibition declaring the pension benefits
inalienable and free from seizure and execution.

He found
no authority in the Matrimonial Property Act which would permit
the courts to override the express provisions of the Nova Scotia Pension
Benefits Act, S.N.S. 1975, c. 14, or the federalCanadian
Forces Superannuation Act.

Pace
J.A. then reviewed Isbister v. Isbister (1981), 22 R.F.L.
(2d) 234, wherein Monnin J.A., for the Manitoba Court of Appeal, commented on
the difficulty of valuing pensions and held that non-assignable pensions had no
calculable present value but could be used in calculating monthly or yearly
maintenance. Pace J.A. stated at p. 42:

I
agree with Monnin J.A. that the amount of monthly earnings received from a
pension may be used in calculating the amount of maintenance to be paid to the
other spouse. However, this does not mean that under our provincial
Matrimonial Property Act a trial judge can divide the proceeds of the pension
between the spouses, but rather he may treat it as income in the hands of the
recipient in deciding the issue of maintenance.

Earlier
in his reasons Pace J.A. had noted that Mrs. Clarke was not precluded from
applying for maintenance at a future time if the need arose.

Jones
J.A. agreed with the conclusion of Pace J.A. but added, inter alia, the
following remarks at p. 44:

In Isbister
v. Isbister . . . Monnin J.A. noted the impossibility of valuing pension
benefits as anticipated by the Ontario Law Reform Commission report. Subsequent
cases have simply confirmed that view where, legislatively or through judicial
precedent, the definition of matrimonial assets has been extended to include
pension benefits. The problem cannot be solved by simply including pension
benefits under the Matrimonial Property Act and leaving it to the discretion of
the judge to determine the value of those benefits. The legislative policy
should be clearly expressed, preferably in pension legislation, so that spouses
will know exactly what benefits they are entitled to in the event of a marriage
breakdown.

4. Analysis

The
appellant submits that Mr. Clarke's pension was the security for their retirement.
The appellant's contribution to the marriage partnership enabled Mr. Clarke to
maintain his employment and accumulate the pension benefits he has received and
continues to receive. The appellant further submits that the pension was built
up by a diversion of funds that otherwise would have been available on a
current basis to the family. Indeed, the appellant points out that these were
factual findings made by MacDonnell L.J.S.C. at trial which were not disturbed
by the Court of Appeal. The appellant therefore submits that it would be
inequitable and unjust, as well as inconsistent with the policy of the Act, to
prevent her from sharing in the pension benefits that the respondent is
receiving on a monthly basis.

The
objective of the Act found in the preamble supports the appellant's position.
The preamble reads:

WHEREAS it is desirable to encourage and strengthen
the role of the family in society;

AND WHEREAS for that purpose it is necessary to
recognize the contribution made to a marriage by each spouse;

AND WHEREAS in support of such recognition it is
necessary to provide in law for the orderly and equitable settlement of the
affairs of the spouses upon the termination of a marriage relationship;

AND WHEREAS it is necessary to provide for mutual
obligations in family relationships including the responsibility of parents for
their children;

AND
WHEREAS it is desirable to recognize that child care, household management and
financial support are the joint responsibilities of the spouses and that there
is a joint contribution by the spouses, financial and otherwise, that entitles
each spouse equally to the matrimonial assets;

Thus
the Act supports the equality of both parties to a marriage and recognizes the
joint contribution of the spouses, be it financial or otherwise, to that
enterprise. The Act goes further and asserts that, due to this joint
contribution, both parties are entitled to share equally in the benefits that
flow from the union -- the assets of the marriage. The Act is accordingly
remedial in nature. It was designed to alleviate the inequities of the past
when the contribution made by women to the economic survival and growth of the
family was not recognized. In interpreting the provisions of the Act the
purpose of the legislation must be kept in mind and the Act given a broad and
liberal construction which will give effect to that purpose.

In this
case, as the trial judge found, it was in large part due to Mrs. Clarke's
contribution that Mr. Clarke was in a position to receive the pension. Prima
facie, therefore, in light of the object and purpose of the
Act, her contribution should be recognized by awarding her a share in the
benefits accruing to the respondent from the pension. Having regard to the
reality that in the case of many Canadian families a pension is their only
substantial asset, it would seem inequitable to place pension benefits outside
the scheme of equal division: see Rutherford v. Rutherford (1981),
23 R.F.L. (2d) 337 (B.C.C.A.), per Seaton J.A., at p.
342. I appreciate that there are differences in the Matrimonial Property Acts
of the several provinces but each supports the equal partnership concept of
marriage and the equal division of property. Accordingly, judicial comments
from other jurisdictions can provide helpful guidance.

From
this starting point of equality of treatment, it is my view that the issue
raised by this appeal is really the appropriate means by which the appellant
may participate in the benefits of the pension. The options appear to be: (1)
finding that the pension is a matrimonial asset and subject to equal division;
(2) ordering an unequal division of the matrimonial assets if the pension is
not a matrimonial asset in order to achieve equality; or (3) taking the pension
into consideration in making a maintenance order. The first two solutions rely
upon the division of property provisions of the Matrimonial Property
Act while the latter depends upon the maintenance provisions of the Divorce
Act, R.S.C. 1970, c. D-8, as amended.

From
the appellant's perspective the first option is undoubtedly the most
attractive. When assets fall within the ambit of "matrimonial
assets" s. 12 mandates equal sharing. There is no discretion at this
stage of the inquiry. It is only when equal sharing would result in unfairness
that s. 13 comes into play and a trial judge has a discretion to make an unequal
division of the matrimonial assets. This discretion may or may not be
exercised in favour of the non-recipient spouse. The non-recipient spouse
bears the onus of "satisfying" the court within the meaning of s. 13
that equal sharing is unfair or unconscionable. That this is not an easy onus
to meet is made clear by the Nova Scotia Court of Appeal in Harwood v.
Thomas (1981), 45 N.S.R. (2d) 414, at p. 417:

Equal
division of the matrimonial assets, an entitlement proclaimed by the preamble
to the Act and prescribed by s. 12 should normally be refused only
where the spouse claiming a larger share produces strong evidence showing
that in all the circumstances equal division would be clearly unfair and
unconscionable on a broad view of all relevant factors. That initial
decision is whether, broadly speaking, equality would be clearly unfair -- not
whether on a precise balancing of credits and debits of factors largely
imponderable some unequal division of assets could be justified. Only when the
judge in his discretion concludes that equal division would be unfair is he
called upon to determine exactly what unequal division might be made.
[Emphasis added.]

Moreover,
s. 13 will not be an effective option where the only asset of substance is the
pension. Hall L.J.S.C. was faced with this situation in Lefort v.
Lefort (1988), 13 R.F.L. (3d) 359 (N.S.S.C.T.D.), a case
arising after the Court of Appeal's decision in the present case. Hall
L.J.S.C. distinguished Clarke and concluded that in these
circumstances the pension had to be treated as a matrimonial asset in order to
give effect to the purpose of the Act. He stated at p. 365:

The
problem here, however, is that there are not adequate assets to respond to an
order for an unequal division that would be of any practical benefit to the
wife. The only asset of any consequence, matrimonial or otherwise, owned by
the parties other than the rather modest household goods and furnishings and
the husband's automobile is the husband's pension fund. In my opinion it would
be intolerable and contrary to the intent of the Matrimonial Property Act to
permit the husband to claim for himself sole entitlement to this asset with the
benefit of future security accruing only to him, while the wife, who has the
principal responsibility of the care of the children, is left with a few sticks
of furniture.

I would
add that even in cases where another asset of substance exists, an unequal
division due to the existence of a pension that has not yet matured may result
in one partner being "present asset rich" while the other is
"present asset poor".

In
my view therefore, as between the two options under the
Matrimonial Property Act, including pensions as matrimonial assets subject to
equal division is clearly the most consonant with the spirit and intent of the
legislation.

Turning
to the maintenance option, which is the appellant's third issue, I note that it
arises out of the statements made by Pace J.A. in the Court of Appeal. He
expressed the view that even although the pension benefit was not a matrimonial
asset, the appellant might still be entitled to participate in it through an
award of maintenance should the need for maintenance arise. The pension in
this context would be income in the hands of the recipient spouse.

The
appellant submits that maintenance is not an acceptable alternative to a share
of a capital asset, the former being contingent on continuing need on the one
hand and ability to pay on the other. I think the appellant's submission is
sound. Cameron J.A., in Tataryn v. Tataryn (1984),
38 R.F.L. (2d) 272 (Sask. C.A.), clearly identified the difference between
the two interests at pp. 285-86:

In my respectful view, the term "maintenance
asset" has no place in determining whether a right to a pension is, or is
not, matrimonial property within the meaning of s. 2(h) of the
Act. Nor can a pension entitlement, if it constitutes matrimonial property, be
excluded from distribution on the footing it is a source of income from which
alimony or maintenance obligations can be paid.

A matrimonial property right is not to be confused
with a right to alimony or maintenance. The two differ fundamentally. Not
only do they depend for their existence on different enactments and spring from
different assumptions, their legal character is wholly dissimilar; the first is
proprietary in nature, and concerns capital and its division: the other is
personal, and involves income and the support of one spouse by the other.

The statutory right of a married woman to share
in the property accumulated during her marriage is rooted in the modern view of
marriage as a partnership, and derives from the presumption of the Matrimonial
Property Act that each of the partners contributed equally and independently to
the acquisition of the marital property. Neither the conduct or condition, nor
the needs or means, of either of the partners to the marriage have anything to
do with the earned right of each of them to share in the property of the
marriage -- except to the limited extent that these factors may incidentally
touch upon the existence and extent of an exemption, exception, or equitable
consideration mentioned in the Act. Generally speaking this Act, which
provides for an orderly dissolution of the economic partnership on marriage
breakdown, envisages a complete accounting and final sharing of the marriage
capital following the breakdown.

A married woman's right to alimony and
maintenance is, of course, a very different matter. It is anchored,
historically, in the notion that marriage imposed a duty upon the husband to
support his dependent wife according to his means as long as she did not absent
herself without cause. The rights to alimony and maintenance . . . remain
altogether dependent upon the behaviour of the wife, and on the condition, means
and other circumstances of each of the spouses. And, generally speaking,
there is little finality to the right of support; if it exists it survives
separation and divorce, and remains, at all times, subject to review as
circumstances change.

All
of this is not to say that the two rights are altogether unrelated, for
obviously they are not, but in my respectful opinion they have to be kept
separate when determining whether a given thing is or is not matrimonial
property. [Emphasis added.]

I
agree with Cameron J.A.'s analysis. Discretionary support payments are a
wholly inadequate and unacceptable substitute for an entitlement to share in
the assets accumulated during the marriage as a result of the combined efforts
of the spouses.

Having
concluded that the preferred option is to characterize the pension as a
matrimonial asset, we must consider whether this option is open to the Court.
This would appear to be the first time the issue has come before us.

"Pension"
is a colloquial term rather than a term of art. There are a wide variety of
pensions payable under a variety of plans. Pension plans may be contributory
or non-contributory and the employee's interest under the plan may be vested or
contingent. When the pension is vested the employee has a guaranteed right to
receive his or her entitlement even if the employment relationship terminates
prior to the fixed retirement date. The employee may also have a choice as to
mode of payment, as was the case here, or a choice as to when to begin receiving
the pension if early retirement is available.

Over
the past several years lower courts have frequently been faced with the
question whether pensions are matrimonial assets and they have discussed the
various kinds of pension plans and their peculiar characteristics. Thus, even
although there is a discernible trend in Canada in favour of pensions as a form
of matrimonial property subject to equal division upon divorce, there are also
a number of decisions in which the courts have been at pains to restrict their
decisions to the particular kind of plan before them. For example, in Tataryn, supra, the
Saskatchewan Court of Appeal unanimously held that a vested pension should be
considered matrimonial property within the meaning of the Saskatchewan
Matrimonial Property Act, R.S.S. 1979, c. M-6.1, but went out of its way to
restrict its decision to vested pensions. Quoting from p. 288:

None
of this is to say that every interest in a pension scheme will constitute
matrimonial property. Some may not. Indeed, I would say that generalization
is more hazardous than usual when it comes to pension rights because there are
so many kinds of pension plans, containing such a wide variety of provisions.

Accordingly,
while I think the policy of the Act supports the trend towards treating
pensions as matrimonial property for purposes of the division of matrimonial
assets, it may not be possible to establish a general principle to that effect
given the variety of plans under which pension entitlements may arise. It is
with this caution in mind that I approach the question whether this particular
pension is a matrimonial asset under this particular legislation.

Under
theCanadian Forces Superannuation Act it was mandatory
that Mr. Clarke contribute a certain percentage of his wages toward his
pension. This contribution was matched by his employer. Under the Act the
amount of the annuity to be received when the named recipient ceased to be a
member of the regular force or died is based on a formula which takes into
account the number of years of pensionable service to the credit of that person
and an average annual income based on the "best" six years of
service. The pension in this case matured prior to the parties' separation.
Before the respondent retired he had the option of taking a cash settlement
which would have been payable to him less the income tax payable on it, or a
monthly benefit of $564.21. Mr. Clarke chose the latter option and is
currently receiving the monthly payments. There is a possibility that these
pension benefits will be indexed to cost of living increases.

The wording
of the Matrimonial Property Act

I
turn first to the relevant provisions of the Act in order to determine whether
its language prevents pensions generally from being considered matrimonial
assets. Section 4(1), of course, is relevant to this question as it provides a
definition of matrimonial property. The definition is very wide in scope. It
includes all real and personal property other than that listed in the
exceptions. The Court of Appeal in Lawrence gave a broad
interpretation to this definition, Hart J.A. stating at p. 141:

Matrimonial
assets include all assets acquired by the spouses either before or during the
marriage, but certain types of property are excluded. The principal exclusions
are business assets and property received by gift which is not used as a family
asset. Unless property can be brought within one of the exclusions in s. 4,
however, it remains a matrimonial asset no matter what its kind or use.
[Emphasis added.]

Aside
from its breadth, however, the definition does not provide much guidance on
the subject of pensions specifically. They are neither included nor excluded.

The
respondent submits, however, that pensions are excluded from the definition of
matrimonial assets by virtue of their inclusion in the "business
assets" exception. The definition of business assets is found in s. 2(a)
of the Act which reads:

2In this Act,

(a)
"business assets" means real or personal property primarily used or
held for or in connection with a commercial, business, investment or other
income or profit producing purpose, but does not include money in an account
with a chartered bank, savings office, loan company, credit union, trust
company or similar institution where the account is ordinarily used for shelter
or transportation or for household, educational, recreational, social or
aesthetic purposes;

Hart
J.A., for the court, considered this section in Lawrence and
concluded that pensions were not "business assets". He noted that
too broad an interpretation of s. 2(a) could result in removing virtually all
assets from the classification of matrimonial assets except the matrimonial
home. He concluded that the only assets which fall within the definition of
business assets are those that are purposely held or used for the production of
income or profit. Pensions in their ordinary form and use would not fit that
description. He stated at pp. 142-43:

It seems to me therefore that the only assets that
should be classified as business assets are ones that are purposely held or
used for the production of income or profit. Thus an apartment house would be
a business asset, whereas a piece of land held in the hope of gain would be a
matrimonial asset. A car used in business would be a business asset, and a car
used for family purposes would be a matrimonial asset. Money invested in
savings certificates, stocks or bonds would be business, whereas money resting
in current accounts or accounts used for household purposes would be
matrimonial. Works of art would be matrimonial whereas an operating farm would
be a business asset. It is not enough to say that some gain or benefit may
accrue in the future from the asset, but rather it must be said that it is
working in a commercial, business or investment way for the production of
income or profit.

In my opinion entitlements to insurance, pension
and other similar benefits pursuant to contractual arrangements would not fall
within the definition of business assets contained in the Act. They are not
primarily held for the purpose of producing income or profit. They are in
reality schemes for saving which divert present income to future use in times
of peril or when the ability to earn income has passed.

Nor
would schemes, such as registered retirement savings plans be business assets
under the Act. Their primary purpose is to save funds and lessen the income
tax which would otherwise be payable on those funds. [Emphasis added.]

I
agree with Hart J.A. that pensions are not business assets. It seems to me
that business assets are assets which have as their purpose the generation of
income in an entrepreneurial sense. A pension is not such an asset. Pensions
may tangentially generate income through interest but essentially they are
funds comprising income diverted from the date on which it was earned.
Pensions are more analogous to savings accounts than to business assets and thus
cannot be excluded from the definition of matrimonial assets under s. 4(1)(e).
The fact that the pension benefits in this case are being paid on a monthly
basis does not, in my view, affect the essential nature of the pension. Its
purpose remains the same.

Section
13(l) of the Act must also be considered in determining whether pensions were
intended to be included as matrimonial assets. As Pace J.A. noted in the Court
of Appeal, the Matrimonial Property Act gives no specific
direction as to the classification and division of pension benefits except
under s. 13 where the court may, in making an unequal division of matrimonial
assets, take into account "the value to either spouse of any pension or
other benefit which, by reason of the termination of the marriage relationship,
that party will lose the chance of acquiring".

The
respondent submits that the fact that s. 13(l) provides for an unequal division
based upon the value of a pension or other benefit lost because of the
termination of the marriage evinces an intention that pensions are not to be
considered matrimonial assets. He argues that it is implicit in this section
that upon termination of the marriage the non-recipient spouse loses his or her
chance to acquire an interest in the pension and it may be appropriate,
therefore, in such circumstances to make an unequal division in that spouse's
favour. This interpretation, if correct, would preclude the inclusion of
pensions in matrimonial assets since, if they were matrimonial assets, there
would be no such loss.

The
respondent's position assumes, however, and in my view erroneously, that the
subsection was intended to benefit only the non-recipient spouse. If pensions
are included as matrimonial assets so that the non-recipient spouse is awarded
an equal share in it, it will be the recipient spouse who may wish to assert a
claim for an unequal division. He or she will also have lost the chance of
acquiring a portion of the pension benefit by reason of the termination of the
marriage.

I
find support for this interpretation of the section in the overall scheme of
the Act. Since pensions are not included in the list of exceptions in s. 4(1),
it is logical to assume that pensions are indeed matrimonial assets and hence
are to be divided equally. This was the approach recently taken to s. 4(1) by
Davison J. of the Nova Scotia Supreme Court, Trial Division in Curren v.
Curren (1987), 81 N.S.R. (2d) 118, where the issue was the
characterization of promissory notes. It was also the approach taken by the
Court of Appeal in Lawrence when dealing with pensions. In Curren Davison
J. stated at p. 123:

The real contentious issue involves characterizing
the two promissory notes or the proceeds therefrom. I use the word
"characterizing" advisedly because it would be easy to fall into the
trap of attempting to fit assets into one of two "pigeonholes" --
matrimonial assets or business assets. It is my view, with respect, that
one starts with the presumption that "all . . . property acquired by
either or both spouses before or during their marriage . . ." are
matrimonial assets and that it is incumbent on one who asserts that a
particular asset is not a "matrimonial asset" to prove that the asset
falls within the exceptions set forth in s. 4(1). As stated by Hart, J.A.,
in Lawrence v. Lawrence (supra) at 113:

"Unless property can be brought within one of
the exclusions in s. 4, however, it remains a matrimonial asset no matter what
its kind or use."

It seems
to me that those exceptions have one common characteristic in that all of the
exceptions contemplate assets which are unrelated to the marriage but are
associated with one spouse to the exclusion of the other and to that extent
could be termed "personal assets". [Emphasis added.]

If, in
other words, the asset does not fall clearly within one of the exceptions in
s. 4(1) it is a matrimonial asset subject to division.

After
including all property acquired either before or during the marriage the court
may then go on to consider whether, in light of the factors enumerated in s.
13, equal division would be unfair. One such factor enumerated in
s. 13(l) is the value of any pension benefit lost as a result of the
termination of the marriage.

Depending
upon the view taken as to whether or not pensions should be included as
matrimonial assets, the courts in Nova Scotia have used s. 13(l) in different
ways. When the courts have found that pensions are not matrimonial assets, an
unequal division in favour of the non-recipient spouse has been made in order
to rectify the inequity resulting from one partner's exclusive entitlement to
the pension: see, for example, Lemmon v. Lemmon (1987),
77 N.S.R. (2d) 113 (S.C.T.D.) and Stevens v. Stevens (1987),
7 R.F.L. (3d) 127 (N.S.S.C.T.D.). On the other hand, where pensions have been
included as matrimonial assets, the courts have found it appropriate to award
an unequal division in favour of the named recipient. In McNulty v.
McNulty (1989), 24 R.F.L. (3d) 41 (N.S.S.C.T.D.), Davison J.
held that the pensions in issue were matrimonial assets but concluded that an
equal division would be unfair due to the fact that Mr. McNulty, the named
recipient, had built up a major portion of the pension prior to the marriage,
had developed multiple sclerosis, and because Mrs. McNulty had not made any
significant contribution to Mr. McNulty's career.

It
seems to me therefore that the way in which s. 13(l) is applied turns on
the prior characterization of pensions, i.e. whether or not they are properly
characterized as matrimonial assets. The section does not come into play until
this determination has been made. In other words, the section does not assist
us in determining whether or not the pension is a matrimonial asset.

A
brief review of the relevant provisions of the Act persuades me that nothing in
its wording forecloses the characterization of pensions as matrimonial assets.
The respondent's main argument, however, is that pensions, particularly
periodic pension payments, are not "property" and therefore cannot be
included when dividing matrimonial property under s. 12. I turn now to a
consideration of that submission.

Is the
pension "property"?

The
appellant submits that a pension is properly viewed as "property" and
is a matrimonial asset subject to equal division under the Act. She argues
that a pension is a right to receive fixed periodic payments and that such a
right constitutes a chose in action which is a form of property. The appellant
cites a number of cases to support this submission: see Rutherford, supra; Herchuk v.
Herchuk (1983), 35 R.F.L. (2d) 327 (Alta. C.A.); McAlister
v. McAlister, [1983] 2 W.W.R. 8 (Alta. Q.B.) and Tataryn, supra.
Moreover, at the time this litigation was instituted the matrimonial property
legislation of British Columbia, Manitoba and Ontario all provided that
pensions were matrimonial assets. In several other provinces where the
legislation is similar to the legislation in issue here the appellate courts
treated pensions as matrimonial assets. Since that time amending legislation
has been enacted in some of the other provinces. In Nova Scotia the Pension
Benefits Act was amended in 1987 (S.N.S. 1987, c. 11) and under
s. 61(2) a spouse may apply to the court for a division of the pension of
his or her former spouse. As the following review demonstrates, the current
trend to treat pensions as matrimonial property presumptively subject to equal
sharing has been both judicial and legislative. The courts are, of course,
restricted by the language of the particular statutes but it is quite apparent
that the provinces consider it generally unfair to exclude one partner to the
marriage from the benefits of a pension.

However,
one of the first appellate level decisions to deal with the issue of pensions
in the matrimonial context, Isbister, supra, was
out of step with the current trend and is heavily relied upon by the
respondent. In Isbister the husband had contributed to three
pension plans and the trial judge fixed the value of these benefits as of the
date of separation at $35,000. The husband appealed this valuation and claimed
that the trial judge had erred in accepting actuarial evidence to evaluate the
pension rights. Monnin J.A., for the Manitoba Court of Appeal, commented that
decisions from other jurisdictions must be viewed with caution because under s.
1(b) of the Manitoba Marital Property Act, S.M.
1978, c. 24, C.C.S.M., c. M45, a commercial asset was defined so to include
rights under a pension scheme or plan. Thus a pension could not be a family
asset. Monnin J.A. also expressed concern about the problem of valuing
pensions in light of the legislative prohibitions against alienation. He held
that pension benefits had no market value and could not be included as assets
under the Act. He stated at p. 243:

How
anyone can place any market value on a pension fund or scheme in light of those
two sections is difficult to fathom. There is not likely to be any market
value for funds which are so clearly, by statute, declared to be inalienable,
unassignable, unable to be charged, and free from seizure, execution,
attachment, and any transaction which purports to assign, charge, anticipate,
or give as security such moneys is declared to be void. Who in his right mind
would want to purchase such an asset? Without a purchaser, it is impossible to
put a price on same or to valuate it for the purpose of division or accounting
of assets. Consequently, s. 1(b) of the Marital
Property Act, which purports to include in commercial assets rights under a
"pension scheme or plan" is not likely to result in any accountable
value. . . . Pension benefits are income to be earned in the future, once a
person has retired from employment. There are many ifs and buts until date of
the payment of the pension. The amount of such yearly or monthly earnings may
be used in calculating monthly or yearly maintenance to be paid to the other
spouse when the husband is in receipt of his pension, but no spouse can or should
be compelled to put up solid cash or money value for something which is
independent of him until he has reached retirement age, which no one can be
certain of reaching because employment may cease, the pension fund may be
bankrupt, or death may arrive prior to retirement.

A
different view of the matter was taken by the Manitoba Court of Appeal in George v.
George (1983), 35 R.F.L. (2d) 225. The court distinguished Isbister and
affirmed the trial judge's decision that the pension was a divisible asset.
The focus of the judgment was on the appropriate means of valuing the pension.
O'Sullivan J.A., for the majority, overturned the trial judge's order for an
immediate accounting and division, declared the named recipient of the pension
a trustee and Mrs. George entitled to an interest in any benefits payable in
the future. Matas J.A., in dissent, affirmed the trial judge's immediate
division and in the course of his reasons approved of Geisel v.
Geisel (1981), 24 R.F.L. (2d) 424, a Manitoba Court of Queen's
Bench decision in which Morse J. held that the guaranteed portion of the plan
should be included as a matrimonial asset.

It
is accordingly clear that at the present time pensions are to be included when
dividing matrimonial property in Manitoba. Following these decisions The
Pension Benefits Act, S.M. 1975, c. 38, was amended, effective January 1,
1984, to specifically provide for a division of pension benefits on marriage
breakup. The inequity of Isbister undoubtedly prompted this change.
The initial judicial treatment of pensions in Manitoba was anomalous when
compared with other jurisdictions.

Pension
benefits also constitute part of the "family patrimony" in the
province of Quebec (Art. 462.2, second paragraph, C.C.Q.)
available for equal division between the spouses on marriage dissolution (Art.
462.3 C.C.Q.).

The
situation in British Columbia has been clarified by statute for a number of
years. Section 45 of the Family Relations Act, R.S.B.C. 1979, c.
121, specifically includes pensions in its definition of family assets. It
reads, inter alia, "a right of a spouse under an annuity or a
pension, home ownership or retirement savings plan". However, cases from
that jurisdiction may still be instructive. In Rutherford v.
Rutherford (1979), 14 R.F.L. (2d) 41 (B.C.S.C), Bouck J. did not
seem to base his decision solely on the language of s. 45. Rather, he stated
at p. 58 that "[c]learly, the pension is a family asset, if not by statute
then by logic, under s. 51". Section 51 is a general provision which
allows a court to include property not specifically described in the Act and to
re-arrange the division of property on the grounds of fairness. The Court of
Appeal affirmed his decision. Seaton J.A., for the court, interpreted s. 45 so
as to include a wide variety of pension benefits and rejected the argument that
there must be a present right to a pension in order for it to be a family
asset. He stated at p. 342:

I would
read "a right of a spouse under an annuity or a pension" to include any
right, even one that can be said to be inchoate, contingent, immature, or not
vested. In short, I would interpret these provisions broadly, so as to give
full effect to the policy adopted by the legislation.

The
leading case in Alberta on the division of a pension on marriage breakdown is Herchuk, supra. The
Court of Appeal was faced with the question whether the husband's right in a
contributory pension plan was "property" within the meaning of the
Alberta Act. The pension at issue was vested but had not matured and the named
recipient could not commute his interest to a single cash payment but had to
take the benefits in accordance with a number of options. There was a death
benefit payable to his estate worth approximately $40,000. The value of the
pension based on the cost of purchasing an equivalent pension plan ranged from
approximately $71,000 to $82,000. The pension was not assignable; the Alberta Pension
Benefits Act, R.S.A. 1980, c. P-3, prohibited the pension from being
assigned, charged, attached, anticipated, or given as security. The Alberta
Matrimonial Property Act, R.S.A. 1980, c. M-9, does not define the kinds of
property to which the Act applies and makes no reference to pensions. In
characterizing the pension as property Stevenson J.A. stated at pp. 335-36:

Matrimonial
property legislation seeks to distribute the assets the parties have
accumulated. A contribution to a pension plan represents a significant
diversion of income, sometimes compulsory, sometimes not. Moreover, employer
contributions to such funds may be viewed by a wage earner as an important
component of his income even though it may be returned in a capital form. While
we recognize that there are considerable difficulties in valuation and that
there are inequities inherent in making a distribution, to disregard these
accumulations is to disregard the object of the Act. In Mazurenko
v. Mazurenko [citations omitted], I took the object of the Act from
the report of the Institute of Law Research and Reform to be the sharing of
economic gains. The accumulation of capital to provide for retirement or other
future needs cannot be distinguished from the accumulation of pension credits.
If we were to develop the concept of "maintenance assets", creating a
class of such assets, its application for the benefit of the spouse would be
based on relative need, not on the capital contribution. The object of the Act
is to ensure that the spouses share accumulations . . . I disagree with the
conclusion reached in Isbister. I characterize the rights of the
husband here as property. The Act is cast in terms of the distribution of
property, not its value (although valuation should be relevant and is
required in cases of exemptions). The term "property" is not
qualified in our statute. It is a broad term which embraces choses in action.
[Emphasis added.]

Stevenson
J.A. did not comment on valuation and distribution but remitted the matter to
the trial judge. He did, however, approve of the analysis and conclusions of
Dea J. in McAlister, supra, where
the characterization of pensions and numerous Canadian authorities were
considered at length. It had been argued before Dea J. that pension rights
should not be classified as matrimonial property because they were mere
contractual rights or future rights to income. In reply to this argument Dea
J. stated at pp. 19-20:

Under either head the objection would not in my view
preclude the inclusion of pension benefits as matrimonial property in this
province. Here the only test is "property". A chose in action is
property. But this objection does raise what may be an underlying unstated
objection to a characterization of pension rights as property. A review of the
pension terms discloses that every contributor, upon completing a certain
number of years of employment, is entitled to a pension. That is the scheme of
the legislation and its regulations. While the occurrence of certain
contingencies may defeat that entitlement, until those contingencies occur, the
entitlement is there. It is a present interest subject to defeasance.

To
inferentially compare the pension rights created here to a contract subject to
a condition precedent so that nothing exists until the condition is fulfilled
seems to me contrary to the plain words and intendment of the legislation and
the regulations creating the rights. These rights are better compared to a
contract subject to conditions subsequent, where the interest created by the
statute exists but may be defeated upon the occurrence of the subsequent
conditions.

Pensions
are not specifically included in the definition of family property in the
Matrimonial Property Act of Saskatchewan. It defines matrimonial property as
any real or personal property, regardless of its kind or nature, that is owned,
or in which an interest is held, by one or both of the spouses. Until the
Saskatchewan Court of Appeal decision in Tataryn there
had been conflicting treatment of pensions by the lower courts. In Tataryn Cameron
J.A. held that vested pensions, irrespective of whether they had matured,
constituted choses in action and formed part of the matrimonial property. He
stated at p. 287:

With
that I return to the question of whether the pension entitlement in this case
is matrimonial property. I have no doubt that it is. Mr. Tataryn has a
contractual right to receive, on retirement, a periodic sum for life. His
entitlement is vested -- in the sense I earlier referred to -- although not yet
matured. Expressed in traditional terms this is incorporeal personal
property. It is a chose in action, an existing personal right of property
capable of enforcement by action. And, since it was acquired during the
marriage, the husband and wife are, by virtue of s. 20, equally entitled to it
-- subject only to the exceptions, exemptions, and equitable considerations
mentioned in s. 21.

Similarly,
the Newfoundland Court of Appeal held in Hierlihy v. Hierlihy (1984),
48 Nfld. & P.E.I.R. 142, that a pension is a family asset. The legislation
at the time did not specifically address the subject of pensions.

In
Nova Scotia, prior to the decision of the Court of Appeal in the present case, Lawrence was the
leading authority. The pension benefits in issue had to be withdrawn as a cash
sum since the husband was moving to a new work place and the contributions
could not be transferred. The trial judge found that the pension contributions
were matrimonial assets. The husband appealed alleging that the benefits were
a business asset and not subject to distribution. Hart J.A., for the court,
rejected his submission and held that pension benefits generally fall into the
classification of matrimonial assets for the purpose of equalization under s.
12. Subsequent to Lawrence, but prior to this appeal, a number
of decisions of the Nova Scotia Court of Appeal had upheld trial court
decisions that pensions were matrimonial assets subject to equal sharing: see,
for example, Cleaves v. Cleaves (1982), 27 R.F.L.
(2d) 239; Muise v. Muise (1982), 30 R.F.L.
(2d) 296, and Nolet v. Nolet (1985), 46 R.F.L.
(2d) 388.

As
evidenced by this brief review the weight of appellate authority in several of
the provinces supports the classification of pensions as matrimonial property.
I think this is an entirely appropriate classification. As found by the courts
in both Herchuk and Tataryn, pensions are choses in action or
incorporeal personal property. The named recipient of a pension is entitled to
the benefits therefrom as of right. As stated by Dea J. in McAlister at p.
15, the receipt of the pension benefit is not "dependent upon arbitrary
whim or the exercise of any discretion by any third party".

Nor
do I find persuasive the respondent's submission that the pension benefits
being received in this case are income rather than property and accordingly not
subject to division. I must respectfully disagree with Pace J.A.'s conclusion
to that effect. Pension benefits are not "income" in the traditional
sense, i.e. payments for present work, nor are they income to be earned in the
future. They are benefits earned throughout the period of the pension. By the
time of maturation the earning period is in the past. Hart J.A. stated it this
way in Lawrence -- pensions "are in reality schemes for saving which
divert present income to future use in times of peril or when the ability to
earn income has passed" (p. 143). A pension is created by earlier savings
which give rise to future benefits. In this sense it is like an insurance plan
or any other savings scheme, structured or otherwise, which would be considered
matrimonial property. Thus, to characterize the pension benefits in this case
as income is to disregard the nature of pensions and place form ahead of substance
with resultant unfairness.

I
agree also with the trial judge that it would be unjust, indeed somewhat
absurd, to find that because Mr. Clarke elected to take monthly payments rather
than a lump sum this changes the character of the asset and distinguishes the
case from Lawrence. The monetary contributions to the
fund were made during the course of the marriage and had the effect of reducing
the moneys otherwise available to the household. Again, the fact that the
pension benefits are being received as a form of "income" does not,
in my view, change their essential nature.

However,
the respondent raises as impediments to classifying pensions as matrimonial
property the fact that they cannot be properly valued and cannot be assigned.
These concerns were raised in the judgments of the court below. Pace J.A. was
concerned about the inalienability of pension benefits and Jones J.A. about
their valuation. I will deal with each of these concerns in turn.

Valuation

The
difficulty in valuing pension benefits has been addressed in a number of
Canadian cases. Indeed, it led to the conclusion in Isbister. It
will be recalled that Monnin J.A. found that because the pension benefit at
issue was inalienable it had no market value and thus could not be valued for
the purpose of division or accounting of assets. In several subsequent cases,
however, the reasoning in Isbister has been criticized, especially for
the importance it placed on the difficulty of valuation. For example, after
reviewing Isbister and thoroughly examining the case
law, Cameron J.A. commented in Tataryn at p. 283:

With
respect, I do not agree with much of this reasoning. Whether a thing is, or is
not, matrimonial property subject to the provisions of the Act does not fall to
be determined on the ease or difficulty with which it may be valued or
distributed. These are distinct issues. Nor in my respectful opinion may the
distribution, required by law, be avoided by treating the pension as a source
of future maintenance.

Similar
criticism is also found in McAlister where Dea J. stated at p. 17:

But
is it reasonable to conclude that because the pension may not be alienated that
it has no value? It seems to me that almost the opposite conclusion should be
drawn. It was because the legislators knew that pension rights had value that
they enacted laws or regulations prohibiting alienation. They wanted to ensure
that the owner of the pension plan would receive the benefits and so they
enacted law to ensure that the pensioner could not alienate his interest, and
as well to ensure that his creditors could not attach it.

Without
in any way minimizing the difficulties that may arise when courts are faced
with the valuation problem, it is my view that such difficulty is not a bar to
concluding that pensions are property for the purposes of equal division.
Courts are frequently required to put a value on items that have no readily
ascertainable value such as pain and suffering or the goodwill of a business.
They have shown a willingness to place a value on different kinds of pensions
and have displayed considerable initiative in seeking a just result in
particular circumstances. The task is not an impossible one and the difficulty
of placing a current value on pension rights is not, in my view, a good enough
reason for refusing to characterize pensions as matrimonial property.

In
any event, valuation does not appear to be an insuperable problem in this
case. Once a pension has matured and is being paid out either in a lump sum or
on a monthly basis valuation is relatively simple. The payments that had
already been made to the respondent since separation were totalled and added to
the respondent's asset list for division purposes. The monthly payments of
$564.21 he was currently receiving and would be receiving in the future were
also ordered to be divided between the parties. This approach does away with
the need to establish the present value of the pension.

(6)
Except as provided by Part II of theGarnishment,
Attachment and Pension Diversion Act, amounts payable
under this Part are not capable of being assigned, charged, attached,
anticipated or given as security and any transaction purporting to assign,
charge, attach, anticipate or give as security any such amount is void.

"financial
support order" means, subject to subsection (2), an order or judgment for
maintenance, alimony or support (including an order or judgment for arrears of
payments) made pursuant to theDivorce Act or pursuant to the
law of a province relating to family financial support;

In
oral argument before this Court the respondent submitted that this restriction
on alienation prevents the courts from diverting or attaching periodic pension
payments in any manner. By implication, therefore, the pension cannot be
matrimonial property. The respondent further submitted that the legislature
made it quite clear that the strict prohibition applied to property division
since it amended the Act to make a specific exception for maintenance. As I
understand the respondent's submissions, he argues that not only are
non-assignable pensions not property, but it is constitutionally beyond the
power of the province to deal with pensions that arise out of employment in the
federal sphere.

The
appellant for her part submits that the restrictions on alienation were never
intended to apply in the matrimonial context and are not a bar to characterizing
pensions as matrimonial property. In any event, the appellant submits that the
type of order made by the trial judge in this case or the type of order where a
trust is imposed on the recipient spouse by the court for the benefit of the
non-recipient spouse avoids any conflict between the two Acts because the
pension administration is not interfered with in those circumstances and the
actual pension payments are not being attached.

Again
I find myself in agreement with the appellant. In my view, s. 8(6) does not
place any concrete legal barriers in the way of a finding that pensions are
property and therefore matrimonial assets. The first branch of the
respondent's argument, that non-assignable pensions are not property, has
already been touched upon. In my opinion, while there may not be a market for
such pensions, they have a value to the named recipient (evidenced by the
abundance of litigation on the issue) even if they cannot be transferred to
others. They do not cease to be assets on that account. Indeed, at common law
all choses in action were unassignable but they were nonetheless recognized as
property. I agree with the comments of Dea J. in McAlister that,
if anything, a legislative prohibition against alienation is a recognition of the
value of such rights and of their essential nature as "property".

I
turn now to the second branch of the respondent's argument, namely that the
province may not constitutionally deal with the pension as a matrimonial
asset. The reason for this, it is said, is that if the pension is treated as a
matrimonial asset and subject to division, a conflict will arise between the
Matrimonial Property Act and theCanadian Forces Superannuation Act. In
order to avoid this conflict, the respondent submits, the provincial
legislation should be read as not including pensions within its definition of
matrimonial assets. I do not agree.

The
proper approach to determining questions of paramountcy is stated by Professor
Hogg in Constitutional Law of Canada (2nd ed. 1985) at
p. 354:

The
doctrine of paramountcy applies where there is a federal law and a provincial
law which are (1) each valid, and (2) inconsistent . . . . [I]t should not be
overlooked that the issue [of paramountcy] does not arise unless each law has
first been held to be valid as an independent enactment.

Once
independent validity and inconsistency are established, the doctrine of
paramountcy is invoked. The effect of that doctrine is stated by Professor
Hogg at p. 367 to be as follows:

Once
it has been determined that a federal law is inconsistent with a provincial
law, the doctrine of federal paramountcy stipulates that the provincial law
must yield to the federal law. The most usual and most accurate way of
describing the effect on the provincial law is to say that it is rendered
inoperative to the extent of the inconsistency. Notice that the paramountcy
doctrine applies only to the extent of the inconsistency. The doctrine will
not affect the operation of those parts of the provincial law which are not
inconsistent with the federal law, unless of course the inconsistent parts are
inseparably linked up with the consistent parts.

There
is no doubt in my mind that Professor Hogg has accurately described the process
of determining paramountcy questions. Indeed, this Court has recently had
occasion to apply the doctrine of paramountcy in Bank of Montreal v.
Hall, [1990] 1 S.C.R. 121. There, La Forest J., writing for
the Court, indicated that an otherwise valid provincial law will be held
inoperative only to the extent that it conflicts with a valid federal law. I
note at this point that there is a flaw in the respondent's argument. A
finding of paramountcy does not preclude this Court from determining that
pensions are property and therefore matrimonial assets. At most, the
invocation of the doctrine of paramountcy will result in the provincial law
being rendered inoperative to the extent of its inconsistency with federal
law. The question remains, therefore, whether such a conflict exists between
the legislation at issue.

There
is no doubt that the legislature of Nova Scotia has jurisdiction over matters
of family property: Derrickson v. Derrickson, [1986]
1 S.C.R. 285. Sections 4 and 13(l) of the Matrimonial Property
Act are intra vires the province. Nor
was it argued that Parliament was without jurisdiction to enact s. 8(6) of theCanadian
Forces Superannuation Act and I am of the view that Parliament did indeed have
such jurisdiction.

Having
found that both Parliament and the Nova Scotia legislature were acting within
the confines of their respective jurisdictions in enacting the provisions under
review, the question becomes whether by virtue of the operation of the doctrine
of paramountcy the federal provision should prevail. The test to be used in
determining whether a conflict exists between the provisions was identified by
Dickson J. (as he then was) in Multiple Access Ltd. v. McCutcheon, [1982]
2 S.C.R. 161, at p. 191:

In
principle, there would seem to be no good reasons to speak of paramountcy and
preclusion except where there is actual conflict in operation as where one
enactment says "yes" and the other says "no"; "the
same citizens are being told to do inconsistent things"; compliance with
one is defiance of the other.

In that
case, this Court found that no inconsistency or conflict existed where both the
federal and provincial legislatures had enacted substantially similar measures
dealing with the problem of insider trading.

Is
there conflict between a provision prohibiting the attachment of pension
payments and a provision including such payments as property subject to
division between the spouses? If such payments are matrimonial assets is the
judge being told to do inconsistent things -- to protect the payments against
attachment for the benefit of the pension recipient and to deprive him of part
of the payments for the benefit of his or her spouse? Would compliance with
the Matrimonial Property Act involve defiance of theCanadian
Forces Superannuation Act? If the answer to these questions is yes, then there
is conflict under the test in Multiple Access Ltd. and the
provincial legislation would be inoperative to the extent of the inconsistency.

The
appellant submits that the answer to these questions is no. She submits first
and foremost that the restrictions on alienation were never intended to apply
in the matrimonial context because, in the case of a married recipient, the
pension was intended to provide security for the recipient's spouse as well as
for the recipient following the recipient's retirement. Indeed, she submits,
in many cases the recipient's spouse will have earned an interest in the
pension during the period of the marriage by her contribution to it. It cannot
have been the intention of Parliament to foreclose the spouse from earning such
an interest or from receiving the benefit of it when the marriage comes to an
end.

I
believe that support for this submission of the appellant is to be found in
s. 22(1) of theGarnishment, Attachment and Pension Diversion Act. That
section provides the only legislative exception to the prohibition against
attachment, etc. It provides that where a court has ordered support or
maintenance in favour of a non-recipient spouse, pension benefits may be diverted
so that such an order may be adequately enforced. It seems to me that by
specifically providing a mechanism by which such orders could be enforced
against a pension, Parliament has unequivocally demonstrated an intention to
ensure that the financial needs of a recipient's family were not adversely
affected by the prohibition in s. 8(6).

Moreover,
while it was necessary for Parliament to enact such provision for the
protection of non-recipient spouses in respect of orders for support or
maintenance, it was not necessary for it to add anything with respect to orders
for the division of matrimonial property. I say this for three reasons which
relate directly to the absence of operational conflict between the federal and
provincial Acts.

The
first is that the language of s. 8(6) does not capture what is done when a
division of assets is ordered by a court. The section specifically lists the
prohibited acts. It does not include asset division by a court pursuant to
matrimonial property legislation.

Second,
it is clear that when a court does order a division of assets, equal or
otherwise, it is not necessarily dealing with the assets in specie. The
process of ordering a division of assets is in the nature of an accounting.
The court does not order that the pension be divided, but rather that
each partner to the marriage should share in the value of the assets
accumulated during the union. As Cory J. remarked in Rawluk v.
Rawluk, [1990] 1 S.C.R. 70, at p. 92:

The
distinction between a share in ownership and a share in property value through
an equalizing transfer of money is more than an exercise in judicial
formalism. This distinction . . . reflects conceptual and practical
differences between ownership and equalization. Ownership encompasses far more
than a mere share in the value of property. It includes additional legal
rights, elements of control and increased legal responsibilities. In addition,
it may well provide psychological benefits derived from pride of ownership.
Where the property at issue is one to which only one spouse has contributed, it
is appropriate that the other spouse receive only an equalizing transfer of
money.

When
faced with possible restrictions on the transfer of a pension to a third party,
several courts have attempted to avoid any conflict by imposing a trust in
favour of the non-recipient spouse upon the benefits of the pension in the
hands of the named recipient. The imposition of a trust as opposed to a court
order for payment is more advantageous to the non-recipient spouse for
enforcement purposes and ensures that the named recipient does not prejudice
his or her partner's interest. This method of distribution was employed in George, supra, under
a legislative scheme which did not specify that pensions were matrimonial
assets and also in Rutherford where the relevant Act specified that
pensions were family assets. Appellate courts accepted the propriety of the
trust approach in both Herchuk and Hierlihy, supra.

In Rutherford, even
although the relevant legislation specified that pensions were family assets,
Mr. Rutherford argued that the non-vested pension could not be dealt with as a
family asset and that Mrs. Rutherford was not entitled to any interest in it.
Bouck J. at trial found the pension to be a family asset and gave Mrs.
Rutherford an undivided one-half interest as tenant in common to be calculated
as of the date of separation. Mr. Rutherford appealed and Mrs. Rutherford
cross-appealed, submitting that Bouck J. should have ordered the superannuation
commissioner to divide the pension benefits and deal with her separately. The
Court of Appeal dismissed Mr. Rutherford's appeal and, while it refused to make
an order directly against the pension commissioner, it did declare Mr. Rutherford
to be a trustee of Mrs. Rutherford's proportionate share. In dismissing Mr.
Rutherford's claim that the pension was not a family asset due to the Public
Service Superannuation Act, R.S.B.C. 1960, c. 57, Seaton J.A. stated at p. 342:

The
appellant bases arguments on the pension legislation to support the position
that this pension plan is not capable of being a family asset. It is said the
Public Service Superannuation Act should prevail, that the Family Relations Act
must not be permitted to amend the pension legislation, that the general
statute (the family relations legislation) must yield to the special (the
pension legislation), that the earlier legislation should not be defeated by
later legislation enacted for an unrelated purpose, and that the pension
legislation should not be deemed to be amended by inference. In my view, none
of those propositions is valid. Neither Act need yield in its own sphere. As
between Mr. Rutherford, the superannuation commissioner and the government, the
pension legislation prevails; as between Mr. and Mrs. Rutherford, the family
relation legislation prevails.

The
Manitoba Court of Appeal in George likewise declared that Mrs. George
was entitled to an interest in any benefits payable to her husband in the
future and stated that there should be a declaration of trust similar to that
made in Rutherford. There is judicial authority in British Columbia also
for the imposition of a trust on pension benefits presently being paid pursuant
to theCanadian Forces Superannuation Act: see Rafferty
v. Rafferty (1984), 39 R.F.L. (2d) 374 (B.C.S.C.).

In
my view the courts have been overly cautious on this issue. The imposition of
a trust is not in my opinion necessary to avoid conflict with the federal
legislation for the reasons I have already given. As a remedy, however, it may
prove to be the most effective way of ensuring that a non-recipient spouse's
interest in the value of the pension is protected.

Third,
to the extent that a court may in fact deal with the pension in specie, it may
only do so when the non-recipient spouse has acquired a beneficial interest in
it. Prior to the enactment of the various statutory regimes family assets were
dealt with at common law on the basis of the doctrine of the presumption of
advancement and the equitable doctrines of resulting and constructive trusts.
These doctrines proved inadequate in redressing many of the inequities that
arose in the context of family property. The provincial legislatures responded
by enacting various statutory schemes to remedy the problem. A typical feature
of these schemes is the deeming of most property items to be matrimonial
assets. With the exception of some statutorily excluded items the value of
real and personal property has been decreed to be subject to equal sharing by
both spouses.

For
all of the above reasons I find that no conflict exists between the federal and
provincial legislation within the meaning of Multiple Access Ltd.
Neither the order made in this case nor the imposition of a trust results, in
my view, in conflict for the reasons given by Seaton J.A. No attempt is being
made to alienate the pension qua pension. The recipient spouse is simply required to
pay a certain amount to the non-recipient spouse each month after maturation of
the pension.

One
final issue must be addressed, namely the propriety of the trial judge's order
on the facts of this case.

Method of
Division

Courts,
generally speaking, employ two methods of dividing pensions. The first is to
award lump sum compensation to the non-recipient spouse either by way of a
money payment or a transfer of assets. The second is to preserve the
jurisdiction of the court until the pension matures either by ordering periodic
payments to be made to the non-recipient spouse or impressing the pension with
a trust. When selecting the appropriate method of distribution it is important
to bear in mind that the primary goal of the legislation is to effect the adjustment
of property in an equitable manner. Of equal importance in some cases is the
desire to sever the financial ties between the parties. These two goals may
occasionally come into conflict. A fair distribution in some cases may require
the parties to wait until the pension matures before it is subject to
division. This will necessitate a continuing financial association between the
parties. Capitalizing the pension for an immediate accounting may succeed in
severing the financial ties between the parties but result in hardship to one
of them if, for example, there are no other substantial assets to be divided.
The preferable result in any given case will obviously depend upon a number of
factors and it is my view that appellate courts should not lightly interfere
with the discretion of the trial judge in this regard.

In
this case the trial judge included in the respondent's list of matrimonial
assets the pension benefits he had already received and took their value into
account when equalizing the matrimonial property. He also ordered that
one-half of the value of future pension payments be paid to Mrs. Clarke on a
continuing basis. No evidence was adduced at trial as to the capitalized value
of the pension but this would only have been necessary had the trial judge
concluded that the facts warranted an immediate valuation and accounting. I
see no reason to interfere with the findings of the trial judge. His order
reflects the spirit and intent of the legislation and, even although it does not
result in a "clean break" between the parties, it enables both of
them to enjoy the benefits of the pension as and when they fall due.

In
view of my conclusion on the first issue it is not necessary for me to address
the appellant's alternative argument, namely that compensation should be
granted by way of an unequal division of matrimonial assets. I do, however,
find it surprising that the Court of Appeal did not address that issue once it
concluded that the pension was not a matrimonial asset. I have already
addressed the appellant's third issue.

5. Disposition

I
would allow the appeal and restore the decision of the trial judge. I would
award the costs of the application for leave to appeal, the costs of the appeal
to this Court and the costs in the Court of Appeal to the appellant.